Director of Public Prosecutions v Pearce

[2015] VCC 1486

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00999

THE QUEEN

v

ADAM PEARCE

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August 2015
DATE OF SENTENCE:	3 September 2015
CASE MAY BE CITED AS:	DPP v Pearce
MEDIUM NEUTRAL CITATION:	[2015] VCC 1486

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Offender	Mr J. McLaughlin	VLA
For the Commonwealth Director of Public Prosecutions	Ms K. Skoblar	CDPP

HER HONOUR: 

1Adam Pearce, you have pleaded guilty to one charge of using carriage service to access child pornography.  That is an offence under the Commonwealth Criminal Code, and a measure of the seriousness of that offending is the maximum penalty imposed which is 15 years' imprisonment.

2It is clear that using a carriage service to access child pornography is a very serious offence.  Although some people can rationalise their behaviour by saying that they are only looking at images, it is indeed a pernicious form of child abuse.

3Real children are the victims of this and they have been victimised terribly in the course of taking the images and creating the images that then form the child pornography.  They not only are sexually abused themselves in the course of that occurring, but if they know that this is happening, they also have to live with the fact that images of themselves are being disseminated to an audience over which they have no control and therefore the abuse on them has been perpetuated.  The shame, therefore, as well as the living with the awareness of the abuse that has been perpetrated on them just in the process of taking the images is often compounded, and their sense of powerlessness is often compounded significantly by the knowledge that images have been taken of them for use in child pornography. 

4Accessing such images creates a market and feeds a market, and therefore perpetuates the further abuse of these or other children.  Therefore it is not correct to say, as so many people try to say to themselves, it is a victimless crime or that you are not as culpable in terms of the harm to these children as those who procure them or take the images or distribute them.  It is an awareness that I understand you have recently come to through the counselling sessions that you have been to with Ms Prior.  But because you did, as so many people who access this material, say to the police when questioned that you did not see yourself as participating in the abuse of children, it is important to make that point not only for you but also for me in sentencing terms so that anybody else who looks at and reads these reasons for sentence will see what the court says and be serious about child pornography, accessing it and the seriousness of it.  Hopefully the broader community will stop calling it a victimless crime, and those who are tempted to access child pornography will not be able to rationalise it or to delude themselves that they are not participating in the victimisation of these children.

5You, like so many other people, accessed child pornography through a peer-to-peer service, and it was as a result of an AFP investigation into the users of BitTorrent, a peer-to-peer service, that your participation was identified.

6On 15 August 2014, a search warrant was executed at your family home.  By then, an IP address traceable to you had been identified as a user, and a sharer and downloader of files.  When the police executed the search warrant, a computer tower was found in your bedroom and file links showed that child pornography had been accessed.  However, as is common in these cases, it became clear that many files had been deleted and were unable to be recovered.  Therefore the nature and extent of much of the material that you had accessed and deleted was not able to be specifically analysed.

7The files which were able to be accessed between the period of 19 May and 12 August 2014 which remained on the computer were reviewed and classified in accordance with what is now an international classification chart.  Of those, most of the files were in Category 1; two of them Category 2; two of them image files and one video file Category 3; 13 of the images were of Category 4, and one was of Category 5.  That scale ranks from the least serious of Category 1 through to the most grave of images in Category 5.  That means the bulk of the images you had were on the lower end of the scale but there were some, and a significant proportion, which were at the higher end of the scale in Category 4, and one in Category 5.

8A file shredding program had been used to delete the child pornography files that had been accessed and viewed, and so there were none remaining on the hard drive at the time the search warrant was executed.  However, police were able to interrogate the data they could find and to confirm what you had told them yourself in interview, that you had actually actively searched for this material and some of the search terms that were clearly designed to identify child pornography had been found.

9You were, as your counsel said, remarkably frank when you were interviewed by the police apart from the rationalisation about this not being offending against children or that you were not a direct offender.  You were remarkably frank about the process of accessing the material and about the cycle of awareness and shame that you went through.  Frank too was the explanation that you then advanced for accessing the material, knowing it was wrong, and how that perpetuating a cycle of distress and dismay at your own behaviour, which led to you deleting it so that you could not actually go back to it again but then finding yourself caught in a cycle.  So that, next time you wanted to access material, you had to access fresh material because you had deleted the images from the previous downloads.

10It was based on the full and frank admissions that you made to the police that the timeframe of this one charge was laid because the material the police were able to access from your computer covered a relatively short period.  However, on your own admission, you had been accessing child pornography between 15 August 2012 and 12 August 2014.  That is a period of just under two years.  You did not access it every day and there was one three month period when you were out of the country and when, on your instructions, you did not access it at all, and indeed you could not have done so in Australia because you were out of the country.

11You also explained to the police, and this is consistent with the explanation later advanced to the psychologist Ms Prior and to the explanation given by her, that the offending, the nature of the material that you sought, became more serious or more intense as the period of viewing the pornography progressed.  As with many people, you started with adult pornography and then progressed to child pornography, and as with many people, you progressed from older children to younger children.  There may be a level of becoming somewhat desensitised which means that there is that progression from adult to child pornography and from older children to younger that can explain some of that contact, but nonetheless it is a real concern that, as you acknowledge yourself, some of the children were barely older than babies.

12You described the viewing of the material as like an addiction that you wanted to stop but you were unable to break the cycle.  You explained, as I have already identified, that you would retain the material for a short time and then delete or shred it.  Whilst I accept your explanation that you would delete or shred it as part of that cycle of knowing what you were doing was wrong and rather than making you feel better in the longer term it made you loathe yourself, nonetheless the default mode on the programs that you used actually works so as to automatically shred the material after a period.  Having said that, I accept that on your account, you shredded or got rid of the material within a very short time of accessing it on each occasion, and that was in part in order to try and stop yourself continuing this cycle.

13It was not until about six months after the raid and your questioning that you were formally charged, and it was in June of this year, that is just under a year since the execution of the search warrant that as a result of the legal process starting, a negotiated plea at hand-up brief committal stage was made and that you were then committed to this court on the 28th for your plea last week.

14I accept in the circumstances that consistently with the full admissions you made to the police when first interviewed and the nature of the broad time period covered by the charge based on your admissions, that your plea of guilty is one entered at the earliest opportunity.

15I also accept on the material before me that this is a plea of guilty entered not only at the first available opportunity, but which confirms the other material that indicates that you are remorseful and that the plea of guilty is an indication of that remorse and an attempt to try and remedy the harm that you have done and to make good.

16Most significantly, within a week of the police execution of the warrant and your questioning, you took yourself to a psychologist where you have been engaged in one-on-one counselling sessions on a very regular basis ever since then.  As I said in the course of the plea, it is most unusual in my sad experience that somebody will, immediately after being charged and after acknowledging what they have done and how wrong it is and being brought up to confront it, will of their own volition take themselves off, seek help, and consistently engage with that professional help.  It is not an easy thing to do and confronting yourself, your own values, and in your case, your mental illness and the impact of that on you and on your offending makes it even more impressive in terms of the genuineness of the acknowledgement of the wrongness of your behaviour and the genuineness of your desire to try and make good by removing yourself from a position where you are likely to offend again and to immediately look at and consistently follow through with strategies to help reduce your risk of reoffending.

17As again was common ground before me on the plea hearing, normally, offending of this nature over such a period and with the sort of images that were accessed would attract a term of imprisonment but yours is, as both counsel properly and sensibly acknowledged, a most unusual case that takes us outside the normal run of offending and makes you an entirely inappropriate vehicle to be used as a signal to other people tempted to access such material as what will happen to them if they follow a like path.

18Unlike most of the people who access child pornography, you suffer from a significant long-standing mental illness, one that was diagnosed long before this offending commenced.  You were only 16 when you were diagnosed with schizophrenia and that diagnosis came about against a family history, other family members having previously been diagnosed with it, and against symptoms that had occurred and which resulted in the identification of a brain tumour.  The tumour is benign but in a position where you are unable to be operated on for its removal because at the moment the risk of trying to remove it is greater than the good that might occur.  It is only if that risk balance changed that something would have to happen.  You had, for some time before then, already been experiencing voices and not knowing what that was or what to do with it and they had been getting worse in the 12 months or so leading up to the diagnosis.

19In materials that come before me, it is unusual for a diagnosis to be made with somebody as young as you, but the persistence of your symptoms, the intervening event of the discovery of the brain tumour and the family history, and indeed your history since that first diagnosis have all confirmed that it was indeed a correct diagnosis, although perhaps sadly for you, a very early onset one.

20Your path since then has obviously been a difficult one.  It is hard for anybody but particularly someone so young to come to terms with a diagnosis of a serious and lifelong mental illness.  You have been, although unfortunate in having that happen to you, extraordinarily fortunate in the support that you have been able to have from your mother and your brother from that time through to now.  That is something that is obviously going to continue.  You are fortunate too that you have, it seems, been able to, relatively quickly, be placed on medication that has worked, that has managed to control your symptoms and has been able to be adjusted before things get out of control.

21You have had the insight to understand that you have a mental illness and to continue to take your medication, and to accept with a level of equanimity the restrictions that the combination of the illness and the medication have placed on your life.  You have not, it would seem to me from the material before me, allowed that to define you, but rather accepted that as something you have to live with but you can live with, and to accept the help that has been offered to you.

22Ms Prior, the psychologist who you took yourself to see and you have continued to see, has confirmed that diagnosis, and in effect your resilience in being able to live with and accept that diagnosis and to work on having as meaningful a life as you can.  She, significantly, in building on the materials that were available from the time that you were first diagnosed and the care and treatment you have had since then, sees that there is a considerable impact on your mental capacity and functioning by reason of your symptoms.  Although I have said the medication has managed to control it or to work for you, you are still afflicted by auditory hallucinations almost every day and they are obviously distressing for you and distressing in terms of your capacity to function.  The voices are not happy voices and are not always good for your feelings about yourself, but you have demonstrated, it seems to me, an extraordinary capacity to be able to live with that and to move on from that.  But the nature and severity of your symptoms, despite what might otherwise be called a success of the treatment, has, I accept, had a considerable impact on you and that there is a considerable correlation between the nature and severity of your symptoms on your capacity and functioning and on the connection between that and the commission of this offence.

23I accept Ms Prior's opinion that you have impaired judgement and insight as a result, and that you have impulse control deficits commonly associated with your condition and which again lead to an explanation for - not a justification of, neither she nor you have sought to do that - but an explanation for your offending.  Your impulse controlling deficits, a cause of your condition, mean that it is much harder to control temptations and you are much less able than others not so afflicted to fully rationalise and control your use of pornography.

24I accept that you understood at all times the wrongfulness of your actions but the addictive type behaviour engaged in is very much a function of your illness and an attempt to deal with, to still and to quieten those voices.  So I accept there is a significant contribution by the condition to your offending behaviour.

25I also accept that because of that condition and its causal connection, you are not a person to make an example of to others.  I also accept that imprisonment would be a much more severe penalty for you than for somebody who did not suffer from schizophrenia and have managed in the way that you have.

26You do pose a risk of reoffending, and Ms Prior is very clear about that and about the connection between the mental illness and the risk of reoffending.  Again, it is very much to your credit that you have continued to engage in counselling with her so as to help yourself to minimise your risks of reoffending, but also it would appear to recognise that you are a continued risk and you must continue to seek and engage in that help.

27The treatment that she has engaged in with you to date has clearly been effective.  There is no further offending of this or any other like nature, and your fragility and your vulnerability to uncontrolled mental illness or to further offending has been effectively managed.  Again in that, you are fortunate to have that, not just the support of your mother and brother but of their understanding of your illness and the correlation between that and the offending and of their continued commitment to support you and to assist you.

28Although therefore you are at some risk of reoffending, I am satisfied that the supports around you from your mother and your brother, from the medication that you are on, and from your continued commitment to engagement and counselling with Ms Prior is such as to contain or manage that risk as best as can be done in the circumstances.

29It is for all those reasons that it would be wrong, inappropriate and punitive without any sense of looking to your personal circumstances to impose the term of imprisonment that as I say would normally be appropriate.

30I agree with the submissions that were made to me that in order to both mark the denunciation, the level of it that is appropriate to someone with your mental illness, to assist to contain your risk, therefore to protect children and the community generally, and also to encourage the continued rehabilitation along the lines that you have already taken, that a community correction order is the appropriate outcome.

31Because of your mental illness, it is not appropriate to impose any unpaid community work conditions.  Daily life can be a struggle enough for you and I accept the evidence from Ms Prior and from your history as explained to me that sometimes the desire or the anxiety about not making a mistake when you are engaging in work can be crippling in itself and can lead to a compounding of your symptoms.  Therefore, imposing unpaid community work would be a non-productive burden and one likely to risk your symptoms not being able to be as controlled as they are now.

32It is important to ensure that you continue your treatment and rehabilitation, and I am therefore imposing a mental health condition.  That means that not only will Corrections be able to supervise your continued engagement with your GP and with your psychiatrist in relation to the treatment of the schizophrenia itself, but will also be in a position to encourage and to direct you to continue your engagement in your counselling sessions with Ms Prior.

33I am also imposing a condition that you are assessed for, and if found to be suitable, to participate in a sex offender advice and treatment program.  I do not know whether you will be suitable or not, or whether the program is appropriate for you.  But the materials make it clear you are, because of your condition, at risk of further offending, and if there is an appropriate program available for you in addition to the one-on-one counselling you are engaging in with Ms Prior, then I want to put you in a position where that is available to you.  It may well be that Corrections takes the view that the treatment that you are getting from Ms Prior is sufficient.  This is not a direct direction that you take part in such a program, it is a direction that you and Corrections explore the possibilities if something additional is needed or appropriate, if not now, at some time during the course of your order that you can be put into such a program in order to assist or protect you and to protect the community.

34I am also imposing a condition of supervision.  That means that there will be, in addition to the supports you get from your mother, your brother, your doctor and your counsellor, that there will be a further person supervising, making sure if things are going wrong there is another step to intervene although it seems unlikely that your relationship with your mother or brother will break down.  If there is, if there are any problems there, then there will be that extra step from Corrections in supervision to assist to make sure you are kept stable and relationships are managed and if there has been a breakdown, bridges are built.  If there is a problem with any of the health professionals you are seeing, again a supervision condition can assist in building bridges to make sure you are again put in contact with the people who are best able to help you and you can best relate to.  So I want you to understand that these are not conditions designed to punish you.  They are conditions designed to assist you to manage the risk of reoffending, to help you continue to manage, as you have done so well, the mental illness that you must live with and to therefore ensure that the risk to yourself and to the community is reduced as far as possible.

35It is a hold over you.  This community correction order will run for two years, so there is that hold over you, and in that sense it is a punishment as well as a protective mechanism to the extent that you did know what you were doing was wrong and to the extent that you can exert control, that is the punishment part of it and the reflection of the two-year hold over you, the making you responsible and accountable.

36I considered whether I should also impose a condition of judicial monitoring, to have you come back and for Corrections anew to report to me on how you are progressing, but it seemed to me that that might be adding one unnecessary condition.  There is a lot that you have got to struggle with and live with, and too many conditions could be counterproductive.  But I am confident that if you are struggling with the conditions of the order, or if Corrections see that you are struggling with the conditions of the order, that there will be the flexibility to be able to bring you back before me to apply for a variation of condition rather than wait until the relationship breaks down and you are breached.  I am sure that your mother and brother hearing this and understanding this will also assist if there is a breakdown in relationships with Corrections or if you are at risk of being breached, that they too will become engaged and intervene before things get out of hand.  You have shown yourself at times able to ask for help and you have been shown, I hope, that when you have asked, the help is there for you.  That is an enormously protective factor so far as I am concerned.

37You are also required, because of the nature of this charge, to be placed on the Sex Offenders Register.  That is a mandatory requirement.  I have no discretions to whether to place you on the register and I have no discretion about the conditions of registration, nor do I have any discretion about the period of time.  This is yet another case where, if I had discretion and I could tailor the order to your circumstances, I would not have placed you on the register, and if it were mandatory to place you on the register, I would not have imposed all the conditions that Parliament requires to be imposed on you, and I would not have imposed an order for the mandatory period of eight years that Parliament requires.  I say that not to engender any sense of grievance in you but simply to mark my protest at such unfair and arbitrary legislation.

38Could you now please stand?

39Adam Pearce, on the charge of using a carriage service to access child pornography to which you have pleaded guilty, you are convicted.  You are placed on a Community Correction Order for a period of two years.  There are core conditions attached to that order which apply to anybody placed on a Community Corrections Order; they are these: you must first attend at the Lilydale Community Correctional Services at Shop 1/16 Clarke Street Lilydale within two clear working days after the commencement of this order.  That means by Monday of next week, so tomorrow or Monday.  You must not commit another offence for which you could be imprisoned during the two year period that this order is in force, so particularly for you that means not using a carriage service to access child pornography again.

40You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations.  That is that you must not be impaired by drugs or alcohol, that is illicit drugs or prescription drugs but taken not in accordance with the prescribed quantities, whenever you attend on Corrections for supervision or for any other compliance with any other Corrections conditions, and you must submit to drug or alcohol testing if requested to do so.

41You must report to and receive visits from the Secretary of Department of Justice and Regulation or their delegate.  You must let a Community Corrections Officer know within two clear working days if you change your address or job.  So if you move house, if you get a job, or if you leave a job, you must let Corrections know within two days, two working days.

42You must not leave Victoria without first getting permission to do so from the Secretary or delegate, and you must obey all lawful instructions from and directions of the Secretary or delegate.  So they are the core conditions.  In addition, there are the four conditions that I told you I was going to impose.  First that you must be under the supervision of a community corrections officer for the term of the order, that is, for the two years. Second, you must undergo any mental health assessment and treatment, and that may include psychological or neuropsychological or psychiatric assessment or treatment, and treatment in a hospital or residential facility as well as ordinary visits on a healthcare professional as directed by the regional manager.  You must participate in programs and/or courses that address factors relating to your offending as directed by the regional manager and particularly, as I have indicated, the Sex Offender Advice And Treatment Services.  Do you understand the effect and conditions of this order?

43OFFENDER:  Yes I do.

44HER HONOUR:  And do you consent to it being made?

45OFFENDER:  Yes.

46HER HONOUR:  Very well, I will have that handed down to you in a moment to be signed.  In addition I must provide you with the copy of the reporting conditions under the Sex Offender Registration Act.  As I have said, those reporting conditions apply for a period of eight years.  I have signed that document and you will see that.  There is also a receipt on it and I will ask you if you are prepared to sign that indicating that you have been provided with a copy of those conditions.  You are not obliged to sign the receipt; the court record will show in any event that you have been provided with the reporting conditions and Mr McLaughlin will no doubt take you through those reporting conditions and explain to you what you must do immediately upon receipt or, now that the court process has finished, then what you must do each year or each time there is a change of circumstances thereafter.  So I will ask my associate to give those documents to you, Mr McLaughlin, so you can check them and then ask your client to sign them or sign the CCO and if he wants to sign the receipt.

47They are all the orders that are required to be made, aren’t they?

48MS SKOBLAR:  They are, Your Honour.

49HER HONOUR:  And pronounced correctly in accordance with Commonwealth legislation?

50MS SKOBLAR:  It is, Your Honour.  I know that there was consent forfeiture of the relevant computer.

51HER HONOUR:  Thank you. 

52MS SKOBLAR:  Thank you, Your Honour.

53HER HONOUR:  And I've explained the terms of the order sufficiently to comply with the Commonwealth Crimes Act?

54MS SKOBLAR:  Yes, Your Honour.

55HER HONOUR:  Thank you.  Do I actually have the forfeiture order?  Was that handed up?

56MS SKOBLAR:  There was and I can hand that up, Your Honour.

57MR McLAUGHLIN:  And that's consented to, Your Honour.

58

HER HONOUR:  Thank you.  I have now signed the Community Correction Order.  I note that you have signed the receipt in respect of the reporting conditions and I also note that you have consented to the retention and destruction of the items seized from your home, that is, the Antec Computer Tower which the Victoria Police took pursuant to the search warrant back in 2014.  So I make that forfeiture order noting your consent to it.  You agree,

Mr McLaughlin, they are all the orders that are to be made?

59MR McLAUGHLIN:  Yes, Your Honour.

60HER HONOUR:  And they are pronounced in accordance with what I am required to do?

61MR McLAUGHLIN:  Yes.

62HER HONOUR:  All right, thank you.  Mr Pearce, once a copy of the Community Corrections Order has been made and provided to Mr McLaughlin so it can be given to you, you will be free to leave the court.  Thank you again, everybody, for your assistance in this.  We will adjourn. 

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